State, doctors tangle over pot complaints

TALLAHASSEE, Fla. - State health officials have filed complaints against two medical-marijuana doctors based on information obtained by undercover investigators posing as patients, in what one physician’s lawyers described as a “trap.”

Both complaints, filed on the same day by the Department of Health last year, are awaiting action by administrative law judges. The complaints appear to be the first major actions taken by the state against doctors who order cannabis for patients they deem eligible for the treatment, which was broadly legalized in a 2016 constitutional amendment.

One of the investigations, into Tallahassee doctor Joseph Dorn, dates to June 2017.

Between February 2017 and January 2018, Dorn --- the chief medical officer of Medical Marijuana Treatment Clinics of Florida --- issued medical-marijuana orders for a total of 3,292 new patients, charging $299 for each new patient appointment, according to the complaint in his case.

Health officials accused Dorn of violating medical-marijuana laws by failing to conduct physical examinations of “Patient O.G.” and “Patient B.D.,” two undercover investigators. The complaint also alleged Dorn failed to conduct full assessments of their medical histories; failed to properly diagnose the men with at least one qualifying medical condition; failed to adequately determine that the patients’ medical use of marijuana would likely outweigh the potential health risks; and failed to review their controlled-drug prescription histories in a statewide database.

Health officials also accused Dorn of making “deceptive, untrue, or fraudulent representations in or related to the practice of medicine” by including false representations in the men’s patient records “to purportedly justify entering a physician certification” for medical marijuana.

According to the May 8 complaint, Dorn saw Patient B.D. in November 2017, when the undercover agent told the doctor he suffered from muscle spasms and anxiety. Dorn diagnosed Patient B.D. with post-traumatic stress disorder.

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When Dorn asked him if had been involved in any car accidents, B.D. said he had eight years before the appointment “but did not provide details related to the severity of the accident and/or its effect on his health,” according to the complaint. Dorn documented that the accident “caused Patient B.D. to have PTSD,” or post-traumatic stress disorder.

But the complaint alleged Dorn “failed to have adequate medical justification to support the diagnosis of PTSD,” because B.D. did not suffer from, or tell Dorn that he suffered from, many of the symptoms the doctor listed in the patient’s records.

The complaint also alleged that, after Dorn asked B.D. what his level of pain was, the undercover agent said he “experienced a minimal amount of pain.”

Dorn then “gestured to Patient B.D. in a manner to suggest that Patient B.D. should provide a higher pain level,” according to the complaint.

B.D. then told Dorn his pain level was 8, on a scale of 1-to -10, but Dorn told the patient he would write “10” in his chart, due to the level of pain B.D. disclosed.

But in a request for a formal hearing with the state Division of Administrative Hearings, Dorn’s lawyers denied the doctor did anything wrong and accused the agency of trying to “trap” the physician.

The “gesture” to Patient B.D., identified in Dorn’s answer as “Investigator Durdean,” was misinterpreted, the doctor’s lawyers wrote.

“The gesture complained of was that he nodded or raised his head. Whatever Durdean’s subjective interpretation of what a head movement means, Dr. Dorn was not using secret signals to Durdean to get him to change his pain rating. This is a ludicrous and fanciful allegation that has no factual basis,” they argued.

A second undercover Department of Health investigator saw Dorn in April 2018, according to the complaint.

Patient O.G. gave Dorn a one-page, handwritten medical record showing that he suffered from PTSD. The record was reportedly created in 2008, and showed that he had been prescribed Xanax, according to the complaint. But Dorn failed to check to see whether O.G. was still prescribed Xanax or Zoloft, the complaint alleges.

O.G. said he had flashbacks and trouble sleeping and had previously consumed pot he obtained from “friends,” according to the complaint.

But, according to the complaint, O.G. never told Dorn he suffered from many of those symptoms. As with patient B.D., the complaint alleged that Dorn diagnosed O.G. with PTSD but failed to have adequate medical justification to support the diagnosis.

But Dorn’s lawyers argued the doctor relied on information provided to him by the man they identified as “Investigator Gregory.”

Gregory presented himself as a former Marine and showed Dorn “a forged medical record from ‘Camp Pendleton’ indicating a diagnosis of PTSD and showing orders for Xanax and Zoloft,” Dorn’s lawyers said.

“Gregory was not a real patient and brought a one-page medical history with him that related to the PTSD. Not every patient has or brings a detailed medical history. The department cannot hold Dr. Dorn responsible for not reviewing information that was not provided to him. There is no requirement that Dr. Dorn review medical records regardless,” they wrote.

Addressing allegations about failing to adequately determine whether the use of medical marijuana would likely outweigh its potential health risks, Dorn’s lawyers wrote that is a decision “that Dr. Dorn makes ever time he approves a patient as qualifying.”

“This weighing of risks is a subjective process. Medical marijuana has shown that it can help PTSD, and both the Florida Constitution and state law list PTSD as a qualifying condition. Dr. Dorn sees very little health risks associated with medical marijuana and concluded at the time that the benefits outweighed the risks and recorded that finding,” his lawyers argued.

Robert Beasley, a lawyer for Dorn, told The News Service of Florida that veterans’ groups have contacted him, expressing that state health officials were going after doctors who use the diagnosis of PTSD --- a condition many military veterans suffer from --- to order marijuana for patients.

Beasley said Dorn relied on the information provided by the alleged patients.

“It’s not as though Dr. Dorn was a drug dealer and they dressed up like a buyer. Really what he’s guilty of is not being able to see through their ruse,” the lawyer said. “Only the state would have the authority to create all of that false information.

They presented false information, he relied on it and he ended up registering the patient. There’s really no way he could have seen through it.”

A separate complaint accused Gainesville-area doctor Justin Davis --- the president and secretary of FMD Green --- of violating state law by operating his office within medical-marijuana operator Trulieve’s office in Lady Lake. Health officials also accused Davis of “obtaining patients from and/or referring patients” to Trulieve; and, among other things, failing to determine if “Patient K.G,” a female undercover agent, was pregnant.

Davis asked “the 56-year-old alleged patient whether she was pregnant,” his lawyer, Mark Thomas, wrote in an answer to the complaint.

The doctor “rented a separate clinical space from Trulieve (as have multiple other physicians), but he has not practiced medicine ‘inside of’ a cannabis dispensary,” Thomas wrote in the May 29 answer.

Between January 2016 and January 2018, Davis ordered 4.9 million milligrams of medical marijuana and low-THC cannabis for his patients, of which nearly 3.8 million milligrams were filled at Trulieve, according to the complaint.

Davis denied that Trulieve, the state’s largest medical-marijuana operator, and the doctor referred patients to each other, in violation of the law.

“Dr. Davis orders medical cannabis for patients only where clinically appropriate and medically necessary, subsequent to a comprehensive history and physical examination,” Thomas argued.